Legal Briefing

Right to rent checks and how ‘picky’ landlords may end up with a claim for unlawful discrimination

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Immigration | 16 March 2016

Right to rent checks were introduced by the Immigration Act 2014 and, following a successful pilot scheme in parts of the West Midlands, became effective for all private tenants in England from 1 February 2016 (currently, the scheme does not apply in Scotland, Wales or Northern Ireland).

The English Housing Survey, published in 2015 by the Department for Communities and Local Government, revealed that the number of private renters in England is at an all-time high. With the ongoing refugee crisis in Europe and the flow of EEA migration into the UK making regular headlines, it is unsurprising that the connection between housing and immigration is high on the political agenda.

An imposition…

The obligation to conduct so-called ‘right to rent’ checks has been imposed on landlords (or their agents) with the aim of preventing those individuals without valid leave to remain in the UK from renting residential accommodation. The checks apply to all prospective tenants over the age of 18 seeking new residential lettings, whether through a private landlord, a lettings agent or owners renting rooms to lodgers.

Exceptions are where a tenancy agreement is already in place and the parties remain the same upon extending the tenancy – the checks do not have to be carried out retrospectively – or where the accommodation is provided by local authorities or social housing, or the property is student accommodation where there is a presumption that evidence of the individual’s right to reside in the UK has already been obtained by the education or government authority.

The checks were initially piloted in five local authorities in the West Midlands, to enable the government to evaluate the scheme and its implementation prior to national roll-out. An independent evaluation of the right to rent scheme by the Joint Council for the Welfare of Immigrants (JCWI), as published in its September 2015 report, found that under the scheme landlords were more likely to avoid renting their properties to overseas nationals rather than take on the burden of conducting right to rent checks.

Despite these concerns, and the recommendations contained in the JWCI’s report, the scheme became effective across England on 1 February 2016. Further, during the second reading of the Immigration Bill 2015-16 in October 2015, MPs approved introducing heavier sanctions for landlords who fail to conduct the checks and a ‘fast track’ method for evicting residential tenants who do not have valid leave to remain in the UK.

Landlords’ obligations

First, landlords are required to establish the ‘right to rent’ no earlier than 28 days before the new tenancy agreement is entered into by ensuring that the proposed tenants, and all other adult occupiers, are either British, EEA or Swiss nationals or have an immigration status which confirms their right to live in the UK at the time of checking.

Secondly, and given that most UK immigration status documents show an expiry date, landlords must conduct follow-up checks within 12 months after the original check was undertaken or before the relevant expiry date.

Finally, should the landlord be satisfied that the tenant no longer has the right to remain in the UK, they must submit a report to the Home Office via an online form.

The Home Office has published guidance for landlords as well as a Right to Rent Code of Practice. The Summary Guidance for Landlords contains a useful ‘tick off’ tool to assist landlords when making right to rent checks. The landlords’ guide to checking immigration documents then directs landlords either to List A (relating to circumstances where no further checks are required) or List B (where further document checks are required), as follows:

List A Group 1: Any one of the documents listed below would suffice and no further right to rent checks are required.

  • A passport (current or expired) showing that the holder is a British citizen or a citizen of the UK and colonies having the ‘right of abode’ in the UK.
  • A passport or national identity card (current or expired) of EEA or Swiss national.
  • A registration certificate or document certifying permanent residence for an EEA national.
  • A permanent residence card issued to a non-EEA family member of an EEA national.
  • A biometric residence permit card (current or expired) confirming indefinite leave to remain or no time limit on the person’s right to remain in the UK.
  • An immigration status document/travel document (current or expired) containing a photograph issued by the Home Office indicating indefinite leave to remain or no time limit residence.
  • A certificate of registration or naturalisation as a British citizen.

If none of the above can be provided, there is additional list of documents allowing a combination of two documents from Group 2 of List A of the guidance.

List B: Any one of the documents listed below would suffice for carrying out right to rent checks.

  • A current passport or travel document endorsed to show that the holder is allowed to stay in the UK for a time-limited period.
  • A current biometric residence permit card issued by the Home Office to the holder, which indicates that the named person is permitted to stay in the UK for a time-limited period;
  • A current ‘residence card’ (including an accession residence card or a derivative residence card) issued by the Home Office to a non-EEA national who is either a ‘family member’ of an EEA or Swiss national or has a ‘derivative’ right of residence.
  • A current immigration status document issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK for a time-limited period.

If a prospective tenant is unable to provide documents as listed in List A or B (as appropriate) and informs the landlord that they have a pending immigration application, landlords can verify this via either the Home Office online checking service or telephone helpline and providing the individual’s immigration application reference number.

Penalties

Landlords, or their appointed agents, who fail to carry out the required right to rent checks are liable to a financial penalty of up to £3,000. The availability of a statutory excuse (found in sections 24 and 26 of the Act) may avert this liability if the landlord can, for example, provide evidence that the required checks were carried out and that there was a reasonable belief that the tenant in question had the right to reside in the UK, or where the landlord informs the Home Office about the contravention as soon as it is discovered. Further, there is a right of objection and appeal against the penalty on grounds such that the statutory excuse applies or the amount of penalty is too high.

Risk of discrimination

The obligation on landlords to conduct right to rent checks is not intended to encourage rejection of prospective foreign tenants, ie the decision not to let a property should not be based on ‘foreign’ accents or the absence of a British passport. The Act, in section 33, incorporates anti-discriminatory measures by referring to the ‘protected characteristics’ set out within the Equality Act 2010.

In particular, one of the biggest concerns for landlords is that these checks are carried out so as to not discriminate on the basis of the protected characteristic of race or racial grounds, including ‘colour, nationality, and ethnic or national origins’. A prospective tenant who is rejected a letting on the basis of their nationality, where that individual possesses the right to reside in the UK, may bring a discrimination claim against the landlord or agent with liability to uncapped damages.

It is unwise, therefore, for landlords or agents to rent their properties to tenants who are ‘obviously British’, despite the findings of the JCWI report which found that:

‘42% of landlords are unlikely to rent to those without British passports. Over 25% would be less likely to rent to someone with a foreign name or foreign accent. Landlords are being forced to discriminate against individuals with the legal right to rent but with unclear or complicated immigration status.’

It remains to be seen how rejected tenants might challenge landlords if the reason for not entering into a tenancy is unrelated to right to rent checks, or whether such tenants will submit discrimination claims under the Equality Act.

What to expect next?
The right to rent checks introduced under the Act impose rigorous obligations on landlords and have been described as unfair to migrant tenancy rights. Reaffirming the right to rent scheme, The Immigration Bill 2015-16 (the Bill), if approved in its current form, would introduce criminal sanctions that carry a maximum five-year prison sentence for the worst offenders. In total, four new criminal offences would be created, two of which could be committed by the landlords and two by agents, applicable where the landlord or agent knows, or has reasonable cause to believe, that a tenant does not have a right to reside in the UK.

The Bill will further weaken tenants’ protection from eviction, by making it possible for landlords to evict tenants who are deemed to have no right to rent, without the need for a court possession order. The government intends to exclude those deemed not to have the right to rent from aspects of the Protection from Eviction Act 1977 and the Housing Act 1988. Eviction will be:

‘Triggered by a notice issued by the Home Office confirming that the tenant no longer has the “right to rent” in the UK. The landlord would then be expected to take action to ensure that the illegal immigrant tenant or occupant leaves the property’.

It will essentially allow landlords to serve notice on such tenants requiring them to leave the property within 28 days.

Introduction of these criminal sanctions could result in landlords and agents being excessively cautious and possibly deter them from renting to individuals who cannot produce the required documentation, whether British or not, without resorting to the Landlord Checking Service.

The JCWI report doubts the efficacy of the policy in reducing the numbers of people already living in the UK without a legal right to do so as no retrospective actions will be taken. Further questions remain over whether any protection will be provided to tenants who are wrongly evicted due to erroneous notices issued by the Home Office or discriminated against for being not ‘obviously British’.

The full impact these new regulations will bring, and the practicalities of daily use, are yet to be seen.